September 2013

September 27, 2013

This week the Florida Supreme Court in Matarranz v. Florida ruled that a defendant who was convicted of First-Degree Murder and Burglary should be granted a new trial because the trial judge failed to remove a prospective biased juror for cause. Interestingly, the juror never actually served because the defense attorney used a peremptory to remove her. However, despite not serving, the defense attorney was still able preserve the issue (whether the juror should have been removed for cause) for appeal.

---he objected to the jurors

---he exhausted all peremptories

---he requested more peremptories

---he identified a specific juror he would have excused if possible

This case is also a good one to cite when an attorney or the judge is trying to "rehabilitate" a prospective juror.

The court's colloquy with the biased juror is provided below.

THE COURT: [Juror], I wanted to follow-up with you. You had answered a question about the fact that this is a burglary case and it had to do with whether or not you thought you could be a fair juror in this case. Tell me what you are thinking.

JUROR: It is just from past experiences. I have been the victim of burglaries like my house when I was younger and also I wrote down that my cousin was a victim of fraud and like trying to cash fake checks and it wasn’t really his fault and everything that happened with that and how it affected my family, that still affected me and I hold a grudge on that and he was pretty much fleeing from whoever that guy was taking checks on and my cousin was the unfortunate one that happened to cash it and that stayed on his record and it is something that I hold against him. How it affected me, my parents and my whole family. I don’t think I could be fair against [Matarranz] because I hold that grudge.

THE COURT: The grudge that you hold is against someone who violates the law?

JUROR: Right.

THE COURT: But the law holds a grudge on people who violate the law once a person is convicted of violating the law, if a person is convicted and it is in my division, it is my job to sentence the victim but I hear what you are saying, but I want to make sure that you understand that this trial would not be about whether or not it is okay to have a grudge against people who commit crimes. The question is going to be was a crime committed and if it was committed whether Mr. Matarranz is the one that committed it; you understand that?

JUROR: Yes.

THE COURT: Well, for example you told me it was your brother?

JUROR: My cousin.

THE COURT: Who was cashing checks and he ended up getting accused of something that he in fact didn’t do?

JUROR: Yes. He had no idea about it.

THE COURT: So, you don’t hold a grudge against people who are accused of something that they didn’t do?

JUROR: No. It is just—I don’t know how it affected like—I don’t know—it is something that just stays there. I know how it affected us and how everything happened. It was during the holiday season and it was just crazy and it just makes me sad about it and it brings back bad memories.

THE COURT: And I thank you and when you have the bad memories come back since you are approaching the holidays and this is going to be a burglary case, when you look over at these two tables which way does your judgment go, if you feel like you have one?

JUROR: Towards him.

THE COURT: And you are indicating towards the defense table?

JUROR: Yeah.

THE COURT: Let me ask the lawyers, if they have any questions?

PROSECUTOR: You have not heard any evidence yet with regard to Mr. Matarranz, right?

JUROR: Yes.

PROSECUTOR: Are you able to listen to the testimony and the evidence in this case with an opened mind?

JUROR: I could have an open mind about it, but it is still—knowing myself I think I would lean more towards the State of Florida just because I don’t think that it is right for someone to come in and take something that someone worked so hard for and take their life away from that person.

PROSECUTOR: Can you follow the judge’s law and the law in the State of Florida and say I know that I favor the defendant, because he looks like a family member or I favor the State because I want to be a State Attorney when I grow up. The question is, can you follow the law and not say I’m going to be more for the defendant or more for the State and just sit here and listen to the evidence and make the State prove our case beyond a reasonable doubt, because that is what we have to do?

JUROR: Yes.

PROSECUTOR: So my question is, can you do that even though you may feel more sympathetic particular towards one side or the other. Can you put aside your feelings and sit here with an open mind and see whether or not the State of Florida at the end of the case has proved the charges of murder in the first degree against the defendant, can you do that honestly?

JUROR: Yes, I think I could. Just like you say maybe I would lean a little more to one side, but I would have to hear everything before I can actually make a decision.

PROSECUTOR: You can’t lean. That is what you are saying when you say I think you are going to make the State nervous . . . and you are going to make [defense counsel] nervous. You can’t say I think. My question, can you put aside your feelings for the State or the feelings for the defendant, put them aside if you are selected as a juror and listen to the evidence that comes forward on the case and make a determination at the conclusion of all the evidence as to whether or not the State of Florida has proved these two charges against the defendant. Can you do that, honestly?

JUROR: Yes.

THE COURT: Thank you. . . .

DEFENSE COUNSEL: I’m confused. I’m sorry. . . . You started telling your honor that you couldn’t do what you just told the prosecutor that you are going to do.

JUROR: I can put it aside but, it is just that with my past experiences—I have an old mind in all things and I know that I can do it. It is just that I rather not, just because—I mean, put it aside, but I can have an open mind and put all my feelings aside. . . .

DEFENSE COUNSEL: Are those feelings going to make it easier for the State to secure a conviction against Mr. Matarranz, if you sit as a juror in this case?

JUROR: I would have to hear—like I would have to hear the whole thing.

DEFENSE COUNSEL: What are you going to require me to do?

PROSECUTOR: Judge, I’m going to object.

THE COURT: Sustained. . . .

DEFENSE COUNSEL: These feelings that you have right [] now that you are leaning towards the State because of your prior experiences, would you explain those prior experiences, please.

JUROR: No prior experience, just like I explained to the judge, I had a cousin.

DEFENSE COUNSEL: Tell me about the burglary?

JUROR: The burglary was when I was younger, someone broke into my house it was on Christmas day, they stole everything and they—it is not easy for me like, an eight year old come into my house, knowing all of my presents are gone and everything that my parents worked so hard for is now gone.

DEFENSE COUNSEL: And it still brings back bad memories as you think about it now.

JUROR: Sometimes. It has gotten easier. They have been moments that I don’t even think about it, but sometimes when something comes up I think a lot of it.

DEFENSE COUNSEL: Did you start thinking about it as soon as your honor told you that one of the charges w[as] burglary?

JUROR: Yes.

DEFENSE COUNSEL: Can you tell me what you started thinking about as soon as you heard that it was a burglary?

JUROR: Just me walking in my house and knowing that everything that my parents worked extremely hard for is now not there and now they have to work harder again to move on forward then that. . . .

DEFENSE COUNSEL: Do you think those experiences that you have and those experiences that you are remembering today, do you think that they are going to affect you as you deliberate and make the decision whether or not Mr. Matarranz is guilty of the charge of burglary and the charge of murder.

JUROR: No, ‘cause I would have to hear it. I don’t think so.

The next day, the Juror was questioned again by the prosecutor and defense counsel.

PROSECUTOR: [Juror], same questions to you. You kind of went back and forth and I want to ask you, if you can promise that you will not hold it against the defendant because he doesn’t have a burden, if he decides not to testify or if they decide not to put on witnesses, are you okay with that?

JUROR: Yes.

PROSECUTOR: And you understand that it is the State’s burden to prove him guilty beyond and to the exclusion of every reasonable doubt?

JUROR: Yes.

PROSECUTOR: And do you understand that they do not have the burden to do anything?

JUROR: Yes.

PROSECUTOR: The bottom line is, you may want to hear, can you follow the law that they do not have to do anything in this case?

JUROR: Yes.

PROSECUTOR: And hold the State to its burden?

JUROR: Yes. . . .

. . . .

DEFENSE COUNSEL: As we are sitting here today, have you been thinking about what we talked about yesterday?

JUROR: And I talked about it and I have a more opened mind about it and I gave a thought and I have opened mind and that anything that happened to me in the past has nothing to do with this case.

DEFENSE COUNSEL: Would you like Mr. Matarranz to testify?

JUROR: It doesn’t matter. It depends on the evidence whether he is guilty or not. As of right now he is innocent because there is nothing presented to me that proves otherwise.

DEFENSE COUNSEL: Have you ever heard of somebody that did something but in real[i]ty he didn’t do it?

JUROR: No.

DEFENSE COUNSEL: What do you think about it?

JUROR: It depends on the evidence that is there because words are just words.

DEFENSE COUNSEL: Are you opened to the possibility that somebody would say that he did something very terrible, very bad which in fact he didn’t? . . . Are you opened to the possibility that somebody may admit to doing something terrible where in fact he didn’t do that?

JUROR: Yes.

Later, the trial court, prosecutor, and defense counsel discussed which prospective jurors they believed should remain on the panel. When the trial court asked defense counsel whether he wanted to use a peremptory challenge to strike the Juror, the following dialogue transpired:

DEFENSE COUNSEL: We move to strike [the Juror] for cause yesterday. She essentially said she would hold a grudge against people who violate the law and people who steal and this was based upon her previous victimized—the fact that she was previously the victim of burglary. She has a grudge toward the defendant. She leans towards the State and I think she even said multiple times, originally she said that she had a problem with the charges when your honor asked her if she could be fair and impartial, she said to both, even though today she kind of backtracked a little bit, she said she now has more of an opened mind. It is clear that this is a woman or a juror who could not be fair and impartial beyond a reasonable doubt that being the standard we move to strike her for cause.

THE COURT: I’m going to deny the cause challenge. Having only had heard testimony from yesterday, I would have been inclined to grant it, but her testimony yesterday includes the fact that there had been this burglary when she was eight years old, that was emotional for her because it included the theft of her Christmas toys and today based on her demeanor, I believe from her reflection, I think she was embarrassed and she said that she thought about it last night and she said that she felt that she had more of an opened mind today and that she could be fair and she realized that that burglary that happened to her had nothing to do with this case. So, for those reasons I’m going to deny the cause challenge; do you wish to exercise a peremptory?

September 24, 2013

The case involving the removal of a juror because of his sexual orientation (Smithkline Beecham Corporation v. Abbott Laboratories), which is currently before the 9th Circuit Court of Appeals, has raised two interesting questions. The first is whether or not the U.S. should follow in the footsteps of England and abolish the peremptory challenge. Assuming the answer to the first question is no, the next question is whether Batson which prohibits exercising peremptory challenges based on race should be extended to cover sexual orientation. Batson has already been extended to cover gender and a few states have taken it upon themselves to prohibit exercising peremptory challenges based on sexual orientation. Some are predicting that regardless of the outcome of Abbott Laboratories it will go to the U.S. Supreme Court.

The LA Times editorial board has used this case to once again call for the abolishment of the peremptory challenge. According to the paper, which has long favored getting rid of peremptory challenges,

even if the Batson ruling were extended to cover sexual orientation, it would still be easy for lawyers to disguise their true motives for peremptory challenges.

September 23, 2013

As this news article illustrates, attorneys must be aware of the local rules regarding post-trial juror contact. Some jurisdictions are very particular about when and how attorneys contact jurors post-trial. In this article, an attorney was reprimanded by the judge for failing to obtain permission from the court before contacting jurors.

The former NY Times Executive Editor, Bill Keller, has written an excellent op-ed entitled A Jury of Whose Peers? In the article, the author laments the decline of jury trials in this country. However, he also makes note of the fact that juries are becoming increasingly more inclusive of society as a whole. The author makes specific reference to the proposed California legislation that allows non-citizens to serve as jurors. Finally, the article offers one of the best descriptions that I have read about jury duty ("the most stunning and successful experiment in direct popular sovereignty in all history").

September 18, 2013

Here is an interesting article that examines the practice of judges talking to jurors post-trial. This article finds that the practice may be okay in foreign countries but there is the potential for problems here in this country.

Finally, the evidence has all been heard, the lawyers have given closing arguments to the jurors, and now it is up to the trial judge; it is her turn. Of course, she will instruct the jury on the law, no question about that. But this was a very lengthy multiple defendant trial. That experienced, savvy trial judge is no doubt tempted to go beyond stating to the jurors the mere legal rules (the usual jury instructions). She might also prefer to talk with them about the evidence: comment on particular items, summarize the overall evidence and the arguments put forth by the lawyers on both sides. After all, we all want to be certain that these lay people understand just what this case was all about. And who better to tell them about the evidence than the judge? If this judge sits in the United States, she had better resist that temptation. Otherwise, she is very likely to be reversed on appeal, perhaps even disciplined. But, elsewhere in the common law world, that judge would not be at all concerned about going beyond the giving of jury instructions. In fact, if she does not, she is likely to be reversed on appeal, perhaps even disciplined.

September 17, 2013

If the courts ever needed a reason to work harder at jury diversity, the police in Gary, IN have given them one. In an effort to get McLynnerd Bond Jr, who is black, to confess to killing Kadmiel Mahone, the Gary detectives informed Bond during his 3-hour interrogation that he would not have any blacks on his jury. Specifically, half way through the interrogation, in which Bond ultimately confessed, one detective told Bond the following:

Don't let twelve people who are from Schererville, Crown Point, white people, Hispanic people, other people that aren't from Gary, from your part of the hood, judge you. Because they're not gonna put people on there who are from your neck of the woods. You know that. They're not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that.

Bond, who has yet to go to trial, is attempting to get his confession suppressed. However, to date, he has been unsuccessful. On an interlocutory appeal, the IN Appeals Court in a 2-1 decision found that Bond's confession was voluntarily obtained. The appellate court stated that "[l]ike the trial court, we do not approve of the comment made by Detective Gonzales. However, this does not necessarily render the confession involuntary." Yesterday, the IN Supreme Court agreed to hear the defendant's appeal of his motion to suppress.

ABSTRACT: Film and Media Studies scholars have long claimed that television is a primary source of information about the criminal justice system for most Americans. These scholars have also found that television can significantly impact viewer’s perceptions of the world. In the last decade, Jerry Bruckheimer’s CSI: Crime Scene Investigation has been the subject of significant scrutiny. Many have claimed that CSI’s highly dramatized, romanticized, and generally unrealistic portrayal of forensic science and the investigative process has significantly altered juror expectations and poses a challenge for lawyers trying criminal cases. The concept has been discussed in nearly 400 news articles and more than 100 academic journal articles. With all of this attention paid to CSI, the impact of Law & Order on jurors’ perceptions of the criminal justice system has been largely overlooked.

September 03, 2013

Here is a story about a jury that not only acquitted the defendant (Dr. Jon Norberg) on charges that he drugged his wife and then had sex with her unconscious body, but also assisted him with getting the state to return his license to practice medicine. Shortly after being charged with the aforementioned crime, Dr. Norberg had his medical license suspended. Fortunately for Dr. Norberg, his jurors really connected with him and thought that he should have never been charged. As a result, they took it upon themselves to help him get his life back in order. At the conclusion of his trial, all the jurors, save for one, presented an affidavit to the North Dakota Medical Board stating that Norberg’s wife had lied in her accusations, and that the defendant should regain his medical license.